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Same-sex case heading for London

The Government's legal bid to ban same-sex weddings is likely to cost taxpayers as much as $3 million, marriage equality campaigners suggested yesterday.

LGBTQ charity OutBermuda estimated the final cost after the Government confirmed it had been given permission to take the case to the Privy Council in London, the island's highest court of appeal.

OutBermuda said it expected the Government to lose the case, meaning legal costs for both sides would come out of the public purse.

“To be perfectly clear, today in Bermuda, same-sex couples are fully permitted to secure marriage licences and have their marriages recognised,” the charity said in a statement.

“This right was declared by the Bermuda Supreme Court in 2017 and upheld by two subsequent court decisions. The ongoing legal battle and final hearing in the Privy Council, however, is necessary to make this basic human right permanent and lasting for all Bermuda citizens.”

The charity added: “Once we are successful at the Privy Council, we estimate that the Bermuda Government will incur approximately $3 million in covering their own legal expenses, as well as ours.”

A Ministry of Home Affairs spokeswoman told The Royal Gazette: “The Government has received leave to appeal. The Government's position concerning the appeal has not changed.”

She added that the ministry “cannot and will not speculate” on the cost of taking the case to the Privy Council.

Bermuda's Supreme Court ruled in May 2017 that gay couples could marry but six months later the Government passed the Domestic Partnership Act, outlawing same-sex weddings.

A challenge was brought against the Act by Bermudian Rod Ferguson, with OutBermuda and others joining the legal action.

Former Chief Justice Ian Kawaley ruled on their case in June last year, finding that the parts of the legislation that restricted marriage to opposite-sex couples were unconstitutional.

He agreed to a request from the Government for his decision to be “stayed” pending an appeal, meaning gay couples could no longer wed.

The Court of Appeal upheld Mr Justice Kawaley's ruling in November and allowed same-sex marriages to take place again. The cost so far to taxpayers of the case brought by Mr Ferguson and OutBermuda is not known.

David Burt, the Premier, told MPs in December that it cost about $14,000 for legal advice on whether to take the fight against marriage equality to the Privy Council and that appealing Mr Justice Kawaley's decision in the Court of Appeal cost about $52,000.

Home affairs minister Walter Roban had previously said the legal costs for the Court of Appeal matter were estimated to be about $61,000.

The House of Assembly heard in March that the estimated legal costs “to date” of defending the case brought by Mr Ferguson and OutBermuda and appealing the outcome was “likely between $120,000 and $150,000”.

Health minister Kim Wilson, speaking during a debate on the legal affairs budget, told MPs: “The cost to appeal to the Privy Council and the cost of responding to the appeal has not been finalised at the moment.”

It is understood that

Mr Ferguson's lawyer, Mark Pettingill, and OutBermuda's lawyer, Rod Attride-Stirling, are seeking costs of about $800,000 each.

OutBermuda said yesterday: “OutBermuda, as well as Rod Ferguson and the other successful plaintiffs, are proceeding to enforce the Court of Appeal's order against the Government for legal costs incurred.”

The Royal Gazette made a public access to information request for records related to the cost of the Court of Appeal case from the Ministry of Legal Affairs.

The ministry rejected the request and did not respond to a request for a review of that decision.

Information commissioner Gitanjali Gutierrez ordered the ministry yesterday to provide the newspaper with a final decision on whether it would release the records by July 10.

OutBermuda said law Lord David Pannick QC — “a pre-eminent human rights and constitutional advocate in the United Kingdom, with extensive global experience” — would represent the charity and Mr Ferguson at the Privy Council.

“The Government of Bermuda this week received their consent from the Court of Appeal in Bermuda to submit their formal Notice of Appeal to the Privy Council; that action will set into motion the rest of the steps and processes and the timing of the hearing in London,” said the charity in its statement.

“OutBermuda is applying for their case to be expedited and heard in the Privy Council as soon as possible, to validate the will of Bermuda's highest court and to give absolute certainty to all Bermudian citizens and same-sex couples.”

Mr Ferguson said: “We always knew this road might take us all the way to the Privy Council. Our team is committed. The support for equal marriage for LGBTQ Bermudians is strong. Our faith in the fairness of the courts has been reaffirmed at every step along the way and we are optimistic about the outcome in London.”

OutBermuda director Adrian Hartnett-Beasley added: “Love ultimately must win. While Bermuda's same-sex couples have been able to celebrate their vows equally under our laws — again — for over six months, we cannot take this hard-won right for granted. This is also the time we prepare well for our final push and bring our case not only to the Privy Council but for the rest of the world to hear.”

The home affairs spokeswoman would not say who will represent the Government at the Privy Council.

Between May 2017 and June 2018, 20 same-sex couples tied the knot — 14 on the island and 6 at sea. There have been two more same-sex marriages since the Court of Appeal's judgment.

Three couples have entered into domestic partnerships since June 1 last year, with one more union pending.

On occasion The Royal Gazette may decide to not allow comments on a story that we deem might inflame sensitivities. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

• To read OutBermuda's full statement and the information commissioner's decision, click on the PDFs under Related Media.

Lord Pannick QC

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Published May 30, 2019 at 9:00 am (Updated May 30, 2019 at 11:41 am)

Same-sex case heading for London

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